Ibrahima
Sidibe is Professor of Law at the University of Lansana Conte of Sonfonia-Conakry,
Departement Droit Public Et d'Anglais, Centre Universitaire de
Kindia, Kindia, Republique de Guinee, West Africa.

The new Guinean Constitution has 162 articles regrouped in 19
titles (Chapters). This Constitution that was adopted
after the death of Guinea second president, General Lansana Conte on December
22nd, 2008 and the ensuing takeover by the army led by Captain
Moussa Dadis CAMARA few hours later, asserts Guinea’s adhesion to the ideals
and principles of the United Nations, the Universal Declaration of Human Rights,
the conventions and international covenants on human rights, the Constituted
Act of African Union, the African Charter of Human and Peoples’ Rights and its
additional protocols relating to human rights as well as the revised treaties
of ECWAS and its protocols of democracy and good governance. It guarantees the
separation of powers and dedicates 22 articles to the rights and duties of the
citizens. It provides for the possibility of the National Assembly being
dissolved by the President of the Republic. It marks the beginning of Guinea’s
third Republic. This Constitution, as mentioned before, provides for the
separation of the powers of Government. As it will be observed, there are
discrepancies in this separation, hence the necessity of discussing the powers
of the Government.

He
is the first personality of the State; he is politically no responsible for
acts accomplished in exercise of his duties. He can only be brought to justice
(before the High Court of Justice) for high treason (Haute trahison). In
case of vacancy of power (for impeachment, physical incapacity or death), the
President of the National Assembly (the Speaker of the Parliament) takes over
as the interim President. If the latter is also impeached, physically incapable
or dies, one of the four Vice-Presidents of the National Assembly by order of
precedence is designated to be the interim President.

The
interim President will exercise the power for not more than sixty days during
which fresh Presidential election will be held. Within that period, the Interim
President cannot hold any referendum; he can neither dissolve the National
Assembly nor take the initiative of the constitutional amendment. He cannot
exercise the Presidential pardon.

The
former Presidents of the Republic come after the President in Office in official
ranks. They are, by right, members of the Economic and Social Council.

He
is the custodian of the Constitution, the guarantor of the national
independence, territorial integrity and the respect of international treaties.
He appoints Guinean diplomatic representatives and receives foreign ambassadors
accredited in Guinea. He is the head of the army and exercises exceptional
authorities. He can submit to referendum bills in limitedly determined areas
for adoption. He can take the initiative of bills to be submitted to the
parliament and the constitutional review. He appoints and dismisses Ministers
and other administrative officials; determines and conducts general policies of
the nation. He has at his disposal the authority of regulation He can dissolve
the National Assembly once certain conditions are met. He has authority of
executive clemency. He is the President of the Superior Council of the Judges.
He has the authority of sizing the Supreme Court for the control of constitutionality
of laws. He appoints the President of the National Council of the Communication
as well the President of the Economic and Social Council. His Mandate is
incompatible with any other occupation, be it public or private.

The Prime Minister

The
Prime Minister, the Head of the Government, is appointed by the President of
the Republic and can be revoked by the same. The Prime Minister is responsible
of leading, supervising, coordinating and impelling the actions of Government
of which he proposes the structure to the President of the Republic.[[1]] In the Constitution of the
second Republic, the position of the Prime Minister was not provided even though
several official have been appointed as Prime Minister. A jurist consult, M.
Alhassan Makanera KAKE stated that the constitutional practices in Guinea
combined with the interpretation of article 39 gives the constitutional ground
for the post of Prime Minister in Guinea.[[2]]

This
Article stipulates that the President of the Republic appoints Ministers…He can
determine by decree the prerogative of every Minister. He can delegate part of
his authorities. The ideologists interpreted this article as allowing the
President of the Republic to appoint a Prime Minister to assist him in carrying
out his responsibilities.

The
constitutional practices show that Prime Ministers have been appointed without
the position being provided by the Constitution through the constitutional
practice are the following: Lansana BEAVOGUI appointed by the Presidential
decree 113/72/PRG of April 26 1972, he was not the Head of Government. After
the change of Regime in 1984 through a Coup d’Etat, a Prime Minister, Head
government was appointed, he was Diarra TRAORE. The post was to be scratched
out on December 18, 1984 to be re-established by Presidential decree n#
D96/098/PRG/SGG of July 9, 1996, naming Mr. Sidia Toure the Prime Minister, in
charge of Economy and Finance portfolio. Later in 1999, a new Prime Minister,
Lamine Sidime, was appointed only to be responsible of coordinating the actions
of the government. In 2004, another Prime Minister, Francois Lounseny Fall, was
appointed but resigned few months later. He has been followed by Cellou Dallin
DIALLO.

All
these Prime Ministers except the one before the adoption of the Constitution,
as observed, were appointed on the ground of article 39. But Lansana Kouyate
appointed Prime Minister at the beginning of the year 2007 as part of the deal
that ended the general strike that, according to the report of Human rights
organizations, claimed about 183 lives including largely among civilians. It
was called up by the main Trade Unions. The agreement reached on the January
27, 2007 quelling the unrest provided for the appointment of a Prime Minister,
Head of government. He was replaced one year and half after by Ahmed Tidiane
SOUARE in June 2008.

After
the death of the President of the Republic, General Lansana Conte, and the
subsequent overthrow of the Government, Captain Moussa Dadis CAMARA appointed
Mr. KOMARA as Prime Minister and Head of the Government.

Under
the present Constitution, the position of Prime Minister is guaranteed. Article
52 stipulates that a Prime Minister and head of Government be appointed by the
President of the Republic. After the election of the present President of
Republic, the Professor Alpha Conde, Guinea has a New Prime Minster, Mohamed
Said Fofana.

Under
the authority of the President of the Republic, the General Secretariat of the
Presidency of the Republic's missions are: the implementation of government
policy in the areas of operation and coordination of activities of the
Presidency of the Republic. It supports the Head of State in his mission of
conception and orientation of the general policy of the nation, control government
action and ensures the proper functioning of public authorities and the
continuity of the State.

Under
the authority of the President of the Republic, the General Secretariat of the
Government's mission is to support the Prime Minister and Head of Government in
the coordination of government action.

As
such, it has particularly:
- To organize, manage and monitor the governmental work and procedural laws and
regulations - to control the legal form of draft laws and regulations - to
ensure the physical formality of enactment and publishing legislative and
regulatory texts - to ensure in his fields of competence, liaisons with the
Ministerial Departments, the National Assembly, the Supreme Court and the
Advisory Bodies - to centralize all acts of the Government and ensure their
publication in the Official Gazette and / or report - to establish schedules
for mission abroad for members of the Government and the State agents.
The Secretary General of the Government, appointed by Decree of the President
of the Republic, provides leadership, coordination and monitoring of services;
The Secretary General of the Government attends the Cabinet meetings in an
advisory capacity, draw up minutes and, issues an extract to Members of the
Government. In conjunction with the Department of Communications, the Secretary
General of the Government prepares press releases at the conclusion of Cabinet
meetings.

The
Secretary General of the Government is assisted by a Deputy Secretary General
who acts as a replacement or substitute in the event of the absence or
incapacity. The Deputy Secretary General of the Government who is appointed by
Decree of the President of the Republic.

The
Secretariat General of Religious Affairs has the following missions: the
conception, development and implementation of government policy with regard to
religious activities.
As such, it has particularly:

-
To promote religious culture - to promote the development of religious
infrastructure - to invite the faithful believers to meet their obligations -
to organize pilgrimages - hold festivals and religious ceremonies - to oversee
the implementation of religious rules and prevent all doctrines and religious
practices with deviationist characteristics - to ensure the preservation of the
purity of faith, peace and social tranquillity; - to participate in the fight
against social plague and encourage the development of religious virtues - to
participate in the strengthening of the moral and civic education of citizens -
to organize and participate in religious meetings - to prevent and manage
conflicts of a religious - to promote and streamline the activities of NGOs and
religious associations.

As
main reason of separation powers, the Executive powers cannot make the law it
applies. That could lead to dictatorship. Laws they deemed to apply are made by
another institution. It will be the subject of the next discussion.

The
legislative power is exercised in Guinea by the National Assembly, whose
members are called ‘Deputes.’ Members of Assembly are elected through
universal suffrage for five years renewable. 1/3 of them are elected through
proportional poll from party’s national list. 2/3 are elected on majority poll
system with single.

To
be elected member of the National Assembly the Electoral Code set the following
established by the Transitional National Council un the interim government led
by General Sekouba KONATE set the following conditions:

a
Be presented by a political party legally constituted;

b
Be over twenty-five years of age;

c
Every member of the National Assembly represents the country as a whole [[3]]

Are
absolutely ineligible, the insane and State assisted persons. Are relatively ineligible,
the Prefects, sub-prefects and their deputies, General Secretaries of
Prefectures, treasurers, judges exercising in the constituency where they are
in function for at least one year. The incompatibility concerns also members of
the Economic and Social Councils and State functionaries while exercising their
functions.

The
internal structuring of the National Assembly is provided by its Internal
Regulation Act, which is established by an Organic Law [[4]]. It determines the structure of that Institution, the
number and the mode of designating of parliamentary commissions, rules
governing the debates etc...[[5]]

As
mentioned above one third of the MPs are elected through uninominal
(single-seat) of single round polling system, the two third are elected on the
party national list (proportional polling).[[6]]

1
Uninominal with single round poll

Here,
electors vote for only one candidate of their choice because a ballot cannot
carry more than one name. The candidate winning the majority (be it simple
majority or absolute majority) of voters is elected.

2
Proportional representation of national list poll

The
2/3 (78) of MPs are elected through this mechanism. Every political party
presents a list of candidates equalling the number of the seats to be filled.
The voters vote for the list of their political parties. The parties will be
represented according to the percentage of votes they won during the election.

To
determine the number of MPs won by party, they calculate the electoral
quotient, which is equal to the number of votes expressed, divided by the
number of seats provided. If after the operation there are remainders of votes
non-ascribed, there are two methods of allocating that rest to parties: the
method of the ‘largest remainder and the method of ‘largest average.’ Guinea,
considering the second method more complicated, opted for the first one, the
method of the ‘largest remainder.’ Here, after the operation of division, the
party, which obtained ‘the remainder’ closer to the electoral quotient (the
number of vote equivalent to a seat), will receive the seat.

Members
of the National Assembly are protected by two sorts of immunity: while exercising
their duties, they are protected by the immunity known as the parliamentary
irresponsibility; and when they are exercising their functions, they are
protected by the parliamentary inviolability. However, this immunity can be
lifted by the National Assembly when necessary, after respecting certain
conditions. [[7]]

The
National Assembly passes ordinary laws as well as the annual budget of the government.
It controls the Executive power in its management of public funds and other
State affairs; 1/10 of its Members have the rights to refer to the
Constitutional Court for the control of constitutionality of government
actions. It passes regulations, notably its internal rules such as the Internal
Regulations Act.

For
an in-depth analysis of this aspect, it is necessary to discuss successively
the agenda of the session, the debates and the system of voting.

Session

National
Assemble meet in ordinary session two times a year: the first session start
April 5th and cannot exceed ninety days. The second session starts
October 5th and cannot exceed ninety days. If those two days are
holydays, the session will start on the next working day. [[8]]

It
can meet in special session either at the initiative of the President if the
Republic or by the majority of the MPs

Legislative procedures

There
are two types of legislative procedures: ordinary procedure and special procedure.

Ordinary legislative procedure

This
procedure concerns the elaboration of laws the domain of which is determined by
article 59 of the Fundamental Law. It is composed of steps:

The
initiative of law belongs concurrently to the President of the Republic and the
MPs. When an initiative is taken by the President of the Republic, it is
referred to as ‘project of law’ (projet de loi); and when it is
initiated by the MPs, it is referred to as ‘proposal of law’ (proposition de
loi). Be it project or proposal of law, the bill is submitted to the
National Assembly for discussion and eventual adoption through the methods
discussed (see 3 below).

When
the bill is passed by the National Assembly, is transmitted without delay to
the President of the Republic for promulgation. The promulgation is the
assertion by the Executive that it recognizes the said law and can consequently
apply it, for it enters into force.

The
President of the Republic has ten days to do that. The deadline starts running
from the eighth day after the transmission of the law. If he does not, subject
to article 63 and 64 of the Fundamental Law, the new law enters into force.

To
this ordinary procedure can be added a special procedure as discussed below.

Referred
to as constitutional laws those laws that amend, abrogate or complete the
provision of the Constitution. According to article 91 of the Fundamental Law,
the initiative of constitutional review can be taken concurrently by both the
President of the Republic or the MPs.

The
proposed review once adopted by the National Assembly cannot immediately enter
into force unless approved by the people of Guinea through referendum. However,
the proposed review initiated by the President of the Republic may not be
submitted for referendum if the President of the Republic so requests and
approved by 2/3 of the MPs. It is the same for the proposed review initiated by
the MPs and that has acquired the approval of the President of the Republic.

There
can be no procedure of review when the country is totally of partially under
foreign occupation, during state of emergency or state of siege. Moreover, the
secular nature, the republican form of the State as well as the separation of
powers cannot be subject to any constitutional review.

The
organic laws are provided for by the Fundamental Law for special matters.
According to its article 67, organic laws cannot be amended but by the 2/3
majority of the MPs present. They can neither be promulgated before the Supreme
Court to which they are necessarily submitted, has declared them to be conform
to the Fundamental Law.

There
is a third and last special procedure; it concerns the National Budget.

The
law allowing the realization of the National Budget is voted by the National
Assembly. The conditions concerning the national budget are provided by the
article 61 of the organic law of the Internal Regulation Act, article 68 of the
Fundamental Law for the initiative of the budget and article 69 for its
amendment.

However,
the government has several means at its disposal to withstand the amendment of
its proposed budget. For instance, article 69 of the Fundamental Law declares
non-receivable any proposition of amendment that reduces public revenue or
worsens public expenditure.

Article
65 of the Internal Regulation Act allows the government to set aside any
untimely parliamentary initiative of amendment of the proposed budget. This
means that the government can oppose to any discussion of parliamentary
amendment and initiative that was not submitted to the relevant Commission
prior to the plenary discussion.

Every
aspect of the elaboration of the Budget is performed within a time limit

i.
Deadline

The
discussion of the bill obeys strictly to determined timetable. In principle,
the bill must be filed to the Bureau of the National Assembly and distributed
to MPs on the day of the first Tuesday of October of the year that precedes the
year of the realization of the budget. Those documents are in the blue color. [[9]] The National Assembly must vote
the budget within sixty days after the reception of the bill.

The
bill is first discussed in specialized commissions, as mentioned before,
established at the beginning of the session. The Commission of Finance, which
takes part in every meeting with Ministers, examines aspect related to
expenditure and then the one related to resources before submitting it to the
plenary session for voting.

If
after sixty days the budget is not voted, it enters into force by Presidential
decree taking into account the amendment suggested by the National Assembly and
accepted by the President of the Republic.[[10]]

ii
Voting the Budget

There
are certain weaknesses in the law governing the procedure of voting the Budget:
nothing indicates which part of the Budget should be discussed in the first
place (resources or expenditure?); there is no possibility for the President of
the Republic to order the National Assembly to vote the entire Budget at once
(in bloc.)

The
ceremony of voting starts by an introductive speech of the President of
Commission of Finance immediately followed by the general report. The following
authorities are required to be present through out the session: the Minister of
Economy and Finance, the President of the Commission of Finance, ad hoc
General Rapporteur. The other Ministers are not obliged to be president
everyday, but they must be present whenever their particular departments are
concerned.

The
Debate starts by the general discussion about the exposé of the general report.
Every speaker expresses his observation and critics. After the discussion, the
National Assembly passes to vote. Here, the modality of voting varies according
as they are about the resource or the expenditure.

For
the resource, the voting is by Chapter for the General Budget; by Annex Budget
for Annex Budgets and by categories of special account of treasure for special
accounts of treasure. For the expenditure the voting is a unique vote for voted
expenditure of the previous year (Services votés), and by Chapter for
the new authorization (new expenditure) likewise for the Annexes and special
accounts of treasure.

-Legislations
voted or amended by the Guinean lawmakers are numerous. The most prominent are
the following:

-Loi
L 95/023/CTRN du 12 janvier 1995, Code de la Marine Marchande de Guinee (Law L
95/CTRN of January 12, 1995, creating the Merchant Marin Code of Guinea)
published in the Official Gazette of June 25 1995;

-Loi
98/034/CTRN du 31 Decembre 1998 portant Code Civil de Guinee (Law 98/034/CTRN
of December 31 1998 creating the Civil Code of Guinea) published in the
Official Gazette of January 10, 1999

-Loi
98/035/CTRN du 31 Décembre 1998 portant Code de Procédure Civile de Guinee (Law
98/035/CTRN creating the Code of Civil Proceedings of Guinea) published in the
Official Gazette of January 10, 1999

-Loi
98/036/CTRN du 31 Decembre 1998 portant Code Penal de Guinee (Law 98/036/CTRN
of December 31, 1998 establishing the Penal Code of Guinea) published in the
Official Gazette of January 10,1999;

-Loi
98/037/CTRN du 31 Decembre 1998 portant Code de Procedure Penale de Guinee (Law
98/037/CTRN creating the Code of Penal Proceedings of Guinea published in the
Official Gazette of January 10, 1999)

-Ordonnance
003/PRG/SGG/88 du 28 janvier 1998 portant sur le Code de Travail (Ordinance
003/PRG/SGG/88 of January 28, 1998 creating the Code of Labor) published in the
Official Gazette of February 10, 1988.

To
control the correctness of application made by the Executive Power of laws
passed by the Legislative Power, another is institution is created by the
people of Guinea at the image of other nations where rule of law is the
principle.

The
Constitutional Court is the competent tribunal in matters relating to the
Constitution, the elections and rights and fundamental freedoms. It decides on
constitutionality of laws as well as the conformity of international treaties
with the Constitution. It also gives a ruling on redress sought against the
acts of the President of the Republic. No other means of redress exist against
its ruling.

The
Constitutional Court is composed of nine members at least over the age of 45
years chosen for their good morality:

-
Two designated respectively by the Bureau of Assembly and the President of the
Republic;

-
Three judges of twenty years of experience at least designated by their peers;

-
One lawyer having at least twenty years of experience;

-
One university lecturer holding an LLD in Public Law and at least having twenty
years of experience designated by his peers;

-
Two representatives of the Independent National Institution of Human Rights
known for their long human rights experience.

The
mandate of the members of the Constitutional Court is nine years non-renewable
and his president is elected for the same period of time by his peers. They are
irremovable during their mandate. They can neither be prosecuted nor arrested
without the permission of the Constitutional Court unless they are caught in
the very act.

In
case of criminal offence by a member, he is brought before the Supreme Court. [[11]]

The
Constitutional Court, which now replaces the Supreme Court on all
constitutional and electoral matter, will have as sole reference the
jurisprudence of the latter. Even though that jurisprudence is relatively poor
on constitutional matters, some decisions worth mentioning: the decision
93/004/CS/CCA of October 28, 1993 concerning the challenge to the candidacy of
General Lansana Conte (the actual President) to the Presidential election of
October 5, 1993 launched by M. Bah Mamadou, Presidential candidate of
Republican National Union (UNR). Published in the Official Gazette of November
10, 1993.

Decision
002/CS/CCA of July 25, 1996 concerning the challenge to the Organic relating to
the protection and benefits of the former Presidents launched by M. Bah Mamadou,
leader of UNR, published in the Official Gazette of August 10, 1996.

However,
it is relatively rich in civil and criminal matters which can read in the Bulletin
de la Justice Guinéenne’
(Bulletin
of Guinean Justice) ‘Recueil des Decisions des Courts et Tribunaux avec
Commentaires’ (Compendium of Decisions of courts with Comments)

The
Supreme Court is placed at the top of the hierarchy of the Guinean courts
in administrative and judicial matters.[[12]] It has been known by
various names: Superior Tribunal of Cassation from 1959 to 1983,
Supreme Court in 1984 and 85, National Chamber of Annulment in 1986 to 1990,
and Supreme Court since then.

The
role of the Supreme Court is to ensure the uniformity in the interpretation of
Guinean legislations. It sits on the judgments pronounced by other courts
except those of the Constitutional Court. It is, therefore, not concerned with
the acts that constitute the source of the dispute before it, but the issue of
interpretation given to the law raised by the parties to the suit. Its mission
is to ensure that the law is properly interpreted by the lower courts. It is
not a third degree court. Its mission is to see whether the law was properly
applied to the case or not.

The
establishment, attributions, organization and functioning of the Supreme Court are provided by an
organic Law.

Members
of the Supreme Court enjoy the security of tenure in office meaning that they
cannot be removed at will. They can only be prosecuted before the civil, criminal
and commercial Chambers of the same court following an authorization and upon
the instructions of the General Assembly.

At
the structural level, the Supreme Court is composed of two Chambers, namely:

This
Chamber is composed of one President who is in fact the First President of the Supreme
Court, at least four Councillors, the Solicitor General and his Deputies. It gives
rulings on, among others, the constitutionality of law and international accords,
matters relating to Presidential and legislative elections including the
question of their regularities, executive excesses, conflicts of jurisdiction
between the Executive and the Legislative powers.

This
Chamber
is composed as the same manner as the Constitutional Chamber except that its
President is not the First President of the Supreme Court. It gives rulings on
appeals for annulment launched against the decisions of other courts pronounced
in last resort in civil, penal, commercial and social matters, the transfers of
matters from one court to another, the prosecution of a judge, (prise à
partie), and
conflicts of jurisdiction between different courts.

This
Court
is composed of a President of Chamber, two Councillors, Referendary Judges
whose number is determined by the Ordinance of the First President of the
Supreme Court on request of the President of the Chamber and Solicitor General
with his
Deputies. It gives rulings on reckonings of public
accountants, the management of funds and the accounting of every institutions
receiving stating funding.

This
judicial system is marked by the existence of various categories of courts:
ordinary courts, the special courts and administrative organs of judicial
characteristics.

These
courts have a general jurisdiction, meaning that their jurisdiction covers all
matters except those excluded by special laws and conferred to other courts.
They comply with the double-degree principle.

There
are courts of first instance; this means that they are courts before which
cases are brought in the first place. Their jurisdictions are determined
according to the monetary values of the interest of the case before them. They
are:

The
reform of 1986[[13]] laid the ground for
the legislator to create a Justice of the Peace in every prefecture of the
country.And the law n#021,[[14]] like the precedent,
stipulated that the jurisdiction of a Justice of the Peace covers the
Prefecture in which it is established and retained 26 Justices of the Peace in
the country.

Article
61 of law n# 021 provides that Justice of the Peace is headed by a President,
who is a ‘unique judge. [[15]] That judge assumes at
the same time the functions of Judge, the Prosecutor and Examining Magistrate.
There can also be one or several surrogate judgesor Examining
Magistratesappointed in a Justice of the Peace.

The
jurisdiction of the Justice of the Peace is the main difference between it and other
courts.Subject to particular legislative provisions or rules, Justice
of the Peace is competent in all matters except those involving the
Administration. [[16]] Therefore, it has
jurisdiction in both civil and penal cases.

-
Jurisdiction in civil and commercial matters

According
to Article 63 of law n# 021, Justice of the Peace deals with every civil matter
and commercial matters in first resort (with possibility of appeal) the value
of which does not exceed fifty thousand (50,000) Guinean francs. However,
according to the same provision, this amount can be amended by Presidential
Decree taken on proposal of the Minister of Justice.

Moreover,
in addition to the procedures of injunction to pay and to do, provided by the
code of civil proceedings, the jurisdiction of the Justice of the Peace
extends, in first resort, to all action-at-law related to the capacity of
individuals. Its jurisdiction also covers all requests of payment, review and
suppression of alimony.

These
jurisdictions of Justices of the Peace in civil and commercial matters go along
with other jurisdictions, as it will be observed:

-
Jurisdictions of Justice of the Peace in penal cases

Here
the Justice of the Peace has double jurisdictions in minor offences called
contraventions and misdemeanours. [[17]]

The
Justice of the Peace deals with offences considered as
contraventions.[[18]]These offences are
punished by an imprisonment for one to fifteen days, and a fine from ten to
fifty thousand Guinean francs with possibility of seizing objects related to
the reprehensible act.[[19]]

However,
Justice of the Peace is allowed to take cognizance of civil suit conjunctive to
the prosecution engaged to punish offences, which fall within its jurisdiction
whatever may be the values of the request.

There
is another category of offence within the jurisdiction of Justice of the Peace,
which is relatively more important. It is the offences referred to as
misdemeanours. They are offences of breach of law punishable by maximal
imprisonment of five years. These offences are normally conferred to the
jurisdiction of the Tribunals of First Instance called in penal matters,
Tribunals of Misdemeanour (tribunal correctionnel); court to be looked
at ulterior.

However,
acting as a court of exception, the legislature removed some misdemeanours from
the jurisdiction of the Tribunal First Instance to be conferred to Justice of
the Peace. Subject to the provisions of the Code of penal proceedings, Justice
of the Peace deals with offences committed by minors within the limits of its
territorial jurisdiction.[[20]]

As
it will be analyzed later, the decisions of first resort of Justice of the
Peace are brought in appeal before the Court of Appeal. [[21]]

The
Justice of the Peace is not the only court of the first degree, its
jurisdiction, as observed before, is limited, ground for the existence of other
jurisdiction of first degree for matters out of its reach.

The
law n#021 after all the abovementioned amendments retained ten Tribunals of
First Instance on the national territory of Guinea.[[22]]These courts have their seats in Boke, Kindia, Mamou,
Labe, Kankan, Faranah, N’Zerekore and three in the special zone of Conakry.[[23]]

The
special zone of Conakry was introduced in the legal organization by article 40
Paragraph 1 of the Presidential Decree n#031. This specialty can be perceived
in the organization of Tribunals of First Instance.

For
its structure, according to article 39 of the Law n#021, the Tribunal of First
Instance is divided into two sections: Civil and Administrative Section, and
the Penal Section.

By
derogation to this article, according to the abovementioned Presidential Decree, the three Tribunals
of the special zone of Conakry have three sections: Commercial Section, Civil
and Administrative Section, and Penal Section.[[24]]

Each
section deals with matters falling within its territorial jurisdiction. The
President of the Tribunal is responsible for its proper functioning. [[25]]

The
derogation to article 39, as mentioned before, concerns only the jurisdiction
of the Tribunals of the special zone of Conakry; it does not make any
fundamental distinction regarding the composition of the tribunals.

With
regard to their compositions, the Tribunal of First Instance is
headed by a unique Judge. [[26]] However, the principle
of collegiality applies in social cases (labor matters). This composition is as
follows: [[27]] one President, one or
several magistrates, one or several Examining Magistrates, and for the special
zone of Conakry, one senior magistrate of Preliminary Examination.

The
duty of the Examining Magistrate is to inform the accused of either the
retention of charge against him or his acquittal.

The
other members of the court are a Chief Clerk assisted by one or several Clerks;
the Prosecutor Office is represented by a Public Prosecutor and one or several
Deputy Public Prosecutors.

In
view of the importance of the Public Prosecutor, his duties are herein below
examined.

-Public
Prosecutor assigns magistrates of his office to different sections of the
tribunal at the beginning of the year. [[28]]

-
He may review this assignment during the year, and if necessary, exercise by
himself their duties,

-
He is in charge of financial and logistic management of the tribunal. In that,
regard he concerts with the President of the tribunal who is cosignatory of all
acts of management. [[29]]

-
He controls the execution of sentences within the jurisdiction of the Tribunal;
supervises the work of the police officers of the Criminal Investigation Department,
as well as the establishment of the police records.[[30]]

-
He pays periodic visit to police station in order to avoid unduly prolongation
of preventive detention and custody. [[31]]

-
The President and the Public Prosecutor of the tribunal carry out inspections
in Justices of the Peaces in their jurisdiction. They (according to their
respective responsibilities) ensure the proper administration of the judicial
services and normal regulation of cases. They report on their observations,
respectively, to the first President of the Court of Appeal, and the Solicitor
General, Procureur General. [[32]]

-
In case of absence or prevention, the Public Prosecutor is replaced by the
senior Deputy Public Prosecutor according to the Act of appointment. [[33]]

These
elements entering in the composition of the Tribunal of First Instance are
engaged complementarily or in interaction for its proper functioning.

In
their functioning, the Tribunals of First Instance have three kinds of
sittings: the ordinary sitting, which is to make usual decisions within their jurisdictions [[34]], the itinerant sittings taking
place outside the seat of the Tribunal. However, it cannot be held outside the
jurisdiction of the Tribunal. And the last type of sitting is the solemnly
sitting, which takes place at the beginning of every judicial reopening. It
gathers all the magistrates of the Tribunal.

It
is worthy to notice that these sittings deal only with matters falling within
the jurisdiction of the tribunals.

For
its jurisdiction, being an ordinary court, the Tribunal of First
Instance has a general jurisdiction with regard to every individual and every
matter to the exception of those expressly attributed to the jurisdiction of
another court.[[35]] As such, it is
competent:

In
first resort on administrative conflicts subject to the provisions of
article 102 of the law L/91/008/CTRN of December 23, 1991(hereafter the
law n#008) aiming at the jurisdiction, organization and functioning of the
Supreme Court. [[36]]

-It has an exclusive
jurisdiction in matters determined by the Code of Civil Proceedings. [[37]]

-It is also competent in
other matters conferred to it by special Acts.

A
Tribunal for children has been established near every Tribunal of First
Instance, to the exception of the special zone of Conakry, which harbors only one
for all the three Tribunals. It deals with conflicts related children within
their territorial jurisdiction. [[38]] Paragraph 1 of the
same article 102 creates a Tribunal of Labor for the special zone of Conakry.

The
Civil and Administrative Section is equally competent in social and commercial
matters.

The
Penal Section is to determine misdemeanours and contraventions committed by
persons having reached their age of majority. The President of the Tribunal,
who is responsible for its proper functioning, settles the conflicts of
jurisdictions between the Sections. [[39]]

Both
the Justices of the Peace and Tribunals of First Instance are courts of the
first degree. According to the principle of double degree of courts, a decision
pronounced by those courts can be taken in appeal to another court
hierarchically superior. That is the court of the second degree.

In
Guinea, the Court of Appeal is the only court of second degree. The law n#021,
which organized it, created two Courts of Appeal in the country: one in
Conakry, and the other in Kankan.[[40]] Each of them has an
attributive jurisdiction and a territorial jurisdiction covering two natural
regions: [[41]]the Court of Appeal of
Conakry covers Lower Guinea and Middle Guinea. Thus, it has under its command
seven Tribunals of First Instance: Kaloum, Mafanco, Dixinn, Kindia, Boke, Mamou
and Labe, with fourteen Justices of the Peaces. [[42]] And the Court of Appeal of Kankan covers the Forest
Region and Upper Guinea. It has three Tribunals of First Instance: Kankan,
N’zerekore and Faranah, with twelve Justices of the Peaces. [[43]]

As
it will be observed, their structure is different from that of Tribunals of
First Instance.

For
its Composition and structure, according to article 13 of the law n#014, each
Court of Appeal is divided into three chambers: the Chamber of Accusation also
called the First Chamber; the Civil, Commercial, Administrative and Social
Chamber; and the Chamber for Misdemeanour.

By
derogation to this article, article 14 of the same law n#021, provided for at
least five Chambers for the special zone of Conakry with the existence of two
separate Commercial Chambers.

Article
20 of the law n# 021 organized the Court of Appeal as follows: the President (the
first President), the Presidents of Chambers, the Councillors to the Court, the
Chief Clerk assisted by several Clerks, the Prosecutor Office is represented by
Solicitor General the First Deputy Solicitor General, and other Deputy Solicitor
Generals.

As
provided by Article 29 paragraphs 1 to 5 of the Presidential Decree n#031, the
functions of Solicitor General are the same as those of Public Prosecutor.

Likewise,
the composition, the jurisdiction of the Court of Appeal is different from those
of the courts of the first degree.

With
regard to its Jurisdiction, according to article 8 of the law n#014, the Court
of Appeal deals with:

nCivil, economic and social matters
as well as the decisions on misdemeanour pronounced in first resort by Justices
of the Peace and Tribunals of First Instance brought before it in appeal. It
can also take cognizance of decisions pronounced by professional disciplinary
organs or arbitrator’s awards according to the law or the will of the parties.

The
Court of Appeal is Judge of exequatur of legal decisions pronounced
abroad. The First President is Judge of exequatur of arbitrator’s awards. [[45]]

In
order to carry out its different functions, the law n#021 provides that the
Court of Appeal has three kinds of sittings: Ordinary Sitting, Solemn Sitting
and General Assembly.

The
Ordinary Sitting is the Sitting of judgement. It gives ruling on appeal lodged
on decisions of courts under its territorial jurisdiction, and on transferred
cases after annulment. Here the Court is composed of three persons: the
President, the Clerk and the representative of the Prosecutor’s Office.

In
case of prevention of the President of a Chamber, he is replaced on request of
the First President, by another President of Chamber of the same court, or by
the senior Councillor of the Chamber. [[46]]The law n#021 continues
by stipulating that in case of prevention of a Councillor, he is replaced by
another Councillor of the same Chamber, or on request of the First President,
by another Councillor of another Chamber.

During
the Solemn Sitting, the Court is composed at least of five members including
the First President or his representative, the Solicitor General or his
representative. It takes place in the First Chamber, all the Judges wearing red
robes. It gathers for the followings occasions: case of taking issue with a
judge, the swearing in of Judges, and the installation of members of the Court.[[47]]The Court has no jurisdiction to
rule in Ordinary Sitting over matters that should be dealt with in Solemn
Sitting.

The
Court of Appeal gathers for General Assembly for special purposes. It is called
at the request of the First President of the Court. [[48]]It is responsible for various measures: establishing and
amending the internal rules of the Court of Appeal and Chambers, ruling in
appeal on decision pronounced by Council of the Bar Association and those of
other auxiliaries of justice under its jurisdiction, as well as litigations on
elections of different members of those Councils.

The
responsibility of the First Presidents is quite preponderating in the Courts. Article
25 of the law n# 021 provides that the First Presidents are the organizers of
the Courts, and as such they:

-
Confer matters to Chambers and control the general role, appoint at the
Sittings of the Presidents of Chamber or Councillors. They are the chiefs of
the courts instead of the Solicitor General as it was the case during the first
regime of popular courts. In this regard, they represent the court; invite the
Presidents of Chambers and Councillors to public ceremonies. Like the Solicitor
General, they have considerable administrative attributions in the evaluation
and promotion of sitting judges of their Court, whereas, the standing judges
are under the command of the Solicitor General.

-
They settle conflicts of jurisdiction between the Chambers. They make, in
agreement with the Minister of Justice, the judicial schedule of the Court.
They hold hearings of summary procedures. They can preside over any Chamber if
they feel necessary. [[49]] When the President of
a Court presides overa Chamber, the President of that Chamber sits as the First
Councillor.[[50]]In case of prevention,
the First President is substituted by the senior President of Chamber, or
Senior Councillor according to the Act of appointment.

All
the ordinary courts have a common characteristic, their permanence.
However, there is one that makes exception to this rule, the Court of Assizes.
It is the Court of the ordinary law in cases of crime. Is defined as crime by
the Guinean Penal Code an offence punished by infamatory or defamatory
sanctions.[[51]]There are two Courts of
Assizes in Guinea: one located in Conakry and the other in Kankan: that means
that their jurisdiction regularly covers that of the Courts of Appeal of those
Cities. They do not sit permanently, in principle they hold their sitting once
a year. However, due to circumstances and necessity of public order, they can
sit more once, and out of their usual seats by the decision of the Minster of
Justice.

The
non-permanent nature of the Court is sustained by its composition.This
Court isa collegial institution (decisions are taken by all the judges) and is composed of
professional judges and a jury constituted by ordinary citizens. It is headed
by a President designated by the First President of the Court
of Appeal for every session among the Presidents of Chambers or Councillors of
the same Court. The President of the Court of Appeal can exercise this function
himself if necessary. The President is assisted by two assessors who must
either be Judges of the Court of Appeal or magistrate of Tribunals of First
Instances.

The
jury is composed of four members called jurés, the jurors: [[52]] They are appointed by Presidential
Decree at the beginning of the year from a list of prominent personalities
among the citizens.

The
Solicitor General is from the Court of Appeal, and the secretariat is assumed either
by the Chief Clerk or by any other Clerk of the same Court.

Since
the court does not sit regularly, its jurisdiction is specific. As mentioned
before, the Court of Assizes, in substantive issues, is competent in crime
related cases transferred to it by the Chamber of Accusation of the Court
of Appeal. It concerns itselfmainly
with
crimes of ordinary law committed by people having reached their age of
majority.[[53]]Consequently, a person
aged less than 13 years cannot be punished since such person is presumed by law
to lack the capacity to commit criminal offences. The person only risks
measures of protection, assistance and surveillance.

This
jurisdiction is considerably extended under the principle of plenitude of
jurisdictions according to which it cannot declare itself incompetent for any
case referred to it by the Chamber of Accusation. [[54]] The Court of Assizes is thus competent to pronounce on
cases qualified as misdemeanour or contravention when they are connected or
indissociable with a crime or when it concerns an offence occurring during the
hearing. This may sometimes arise from an error of qualification by the Chamber
of Accusation.

Similarly,
the court can take cognizance of cases concerning minors over 13 years of age
prosecuted for committinga crime. However, in such case, its composition
changes to include the President of the Tribunal for Children or a magistrate for Children replacing one of the
Councillors. The decisions of the Court of Assizes are liable of challenge
before the Supreme Court.

The
territorial jurisdiction of the Court of Assizes is triple: it can be where the
crime has been committed, where the suspected criminal resides or where he as
been arrested.

All
of the abovementioned institutions are meant to determine all cases within
their substantive jurisdiction and concerning every individual within their
territorial sphere. However, the Guinean system has also other categories of
courts that are in many regards different from each other.

These
courts have specialized jurisdictions either with regard to the subject matter
or with regard to the quality of the individuals concerned. They are different
from ordinary courts. Each of these courts is discussed in foregoing parts of
this discourse.

These
are courts charged with the responsibility of determining matters relating to
minors (people under 18 years of ageat the moment when the offence
was), especially in which they are offenders. These courts form a category of
courts of exception. Therefore, their jurisdiction is confined within the limit
of legislations that need to be strictly interpreted. They are the Tribunals
for Children, the Court of Assizes for Children and Magistrate
for Children.

The
Magistrate for Children can (that is, in fact, the case very often) first
investigates the offence committed by the minor through what is known as
preliminary examination. He can also perform the function of judge by
constituting alone the whole court.

After
this brief examination of court for minors, we will look at other more complex
institutions of exception.

This
court has been established by the Organic Law L/91/009 of December
1991, which provides for its attribution, organization as well as its
functioning.

With
regard to its organization, the High Court is composed of a member of the
Supreme Court, a member of the Constitutional Court, a member from the Court of
Accounts and ten Members of Parliament. Each one of them is chosen by his
colleagues. The President who is a fulltime judge Is elected by his
colleagues.

The
High Court of Justice is competent in matters against the President and the
Vice-president for offences committed in exercise of their functions.

Closely
related to the High Court is established a Commission of Preliminary Examination
composed of three fulltime members and three substitutes members. They are
chosen among the sitting judges of the Court of Appeal by the General Assembly
of the same, excluding the standing judges, at the end of the judicial year,
which begins, with the ordinary year for a period of one year. The President of the
Commission is chosen the same way from the fulltime judges.

With
regard to its jurisdiction, the High Court deals with cases against the
President of the Republic for ‘high treason’;
similarly, the court deals with cases against Cabinet Ministers for offences defined as
crime and misdemeanour committed in exercise of their functions.

However, The co-authors and accomplices of the Cabinet Ministers are
brought before ordinary courts. These courts stay the execution of their
decision for the decision of the High Court of Justice.

The
decisions of the High Court are not liable to appeal before the Court of Appeal
or the Supreme Court.

If
the High Court of the Justice is not a permanent court of exception and its
jurisdiction being linked to the quality of the persons suspected of committing
the offence, there is another court of exception with permanent characteristic.

It
is the nature of the offence that determines the jurisdiction of this court. It
was created by the Ordinance n# 152/PRG/85 of August 10, 1985. It is a
permanent court of exception.

Regarding
its organization, the Court of State Security is composed of a President who is a judge
of the Supreme Court, two professional judges and two high officers of the
army. The Prosecutor is assisted by two Deputies chosen among army officers.
The Clerk Office is occupied by a high officer of the army.

It
has jurisdiction in both peacetime and wartime and covers the whole national
territory. It takes cognizance of crimes and misdemeanours of political nature.

However,
this jurisdiction is optional since, the Prosecutor can transfer those cases to
ordinary courts. The appreciations of the offence as well as the application of
the punishments are made according to the Guinean Penal Code. The decisions of
the court cannot be appealed. Nevertheless, those pronounced in absence of the
suspect can be subject to review.

Besides
the Court of State Security, which deals with matters that are political in
nature involving adults, there is another court, which deals with special
category of people.

The
structure and functioning of the Military Tribunal are governed by the
Ordinance n#153/PRG/85 of August 10, 1985. Its jurisdiction covers the national
territory. According to article 849 of the Code of Penal Proceedings, the
Military Justice is dispensed under the control of the Supreme Court by the Military Tribunal. This court the
seat of which is in Conakry can sit in both peacetime and wartime periods.

The
Military Tribunal is composed of a President who is a professional
judge, assisted by four Assessors one of whom is a professional judge, a Judge
of Preliminary Examination from judicial category courts on detachment for
temporary service at the Ministry of Defence; two militaries
of higher or equal rank as the accused. The Prosecutor’sOffice is occupied by
another judge of judicial category of court on detachment for temporary service
at the Ministry of Defence. There is a Chief Clerk assisted by two
Clerks.

Its
jurisdiction covers all the offences of military nature. These offences are
listed by article 3 of the abovementioned Ordinance. They include: high treason,
damage to the internal and external security of the State, destruction of
property, desertion, defaulting, abuse of authority and embezzlement.

In
the past, the ordinary offence committed by the military in time of peace was
brought before the military tribunal. But due to the scope of misdemeanours
committed by the military and the impunity that followed, the Ordinance
n#021/PRG/88 gave jurisdiction to tribunals of judicial category of courts to
deal with all offences of ordinary law committed by members of the army in time
of peace.

Cases
are referred to the Military Tribunal according to the procedures of session of
the ordinary courts. The decisions of the Military Tribunal can only be
challenged before the Judicial Chamber of the Supreme Court

.

The
High Court of Justice, the Court of State Security and the Military Tribunal are
courts of exception either according to the nature of the offence or the
quality of the accused person where the State is a party, but not conflicts
among individuals. There is a court of exception of that sort of jurisdiction.

This
tribunal like other tribunals having exceptional jurisdiction, has a
specialized jurisdiction since it deals with labor matters only.

They
are governed by labor law, social legislations and social security.

There
are two Labor Tribunals in Guinea: in Conakry and Kankan, therefore their
jurisdiction is not national.

For
their structure, Labor Tribunals comprise a President and a Vice-President both
of whom are magistrates, two Assessors and their Substitutes chosen from the
employees, and two Assessors from the employers. The Assessors and Substitutes
of employees are chosen from annual lists presented by the most representative
trade unions or, in case of clear signs of weakness of those trade unions, the
lists can be presented by the inspectorships of labor.

The
two Assessors of employers are selected from annual lists of the Minister
of Justice
according to the proposal of the Department in charge of labor. The number of
names on those lists must at least double the number of positions provided. The
terms of office of the Assessors and their Substitutes are one year, which is
renewable.

The
Assessors and their Substitutes are sworn in by the Tribunal of First Instance
under the territorial jurisdiction of which they are.

From
the list prepared by the Ministry of Labor, the President of the
Tribunal selects for each case, the Assessors of employers and
employees from the profession in which the conflict rose. Even though the
tribunal is composed of several sections of professional categories, only the
Assessors concerned by those professional categories can be invited to sit.
However, that rule is not imperative. [[55]]

The Clerk Office is held by a Chief Clerk assisted by one or several
Clerks hereto referred as Secretaries.

For
its jurisdiction, every Labor Tribunal is territorially competent within the
limit of the jurisdiction of the Court of Appeal where it sits. Substantively, it is competent for
all conflicts related to labor: individual or collective litigation between
employers and employees during the execution of labor contracts, which
includes working conditions, salaries and sacking. It also deals with
matters related to accidents at work placeand social security.
Its jurisdiction does not only cover private sectors but also the State agents
as well as those of territorial entities with the exception of fulltime civil
servants and members of the disciplinary forces.

The
role of this tribunal is first to conciliate the parties before going into the
full process and second, to examine the conflict. Its decisions can be
challenged before the Court of Appeal. The proceedings before the Tribunal
of Labor are governed by the Guinean Labor Code. [[56]]

The
Guinean legal system is thus animated by those courts,
some of which are superimposed while others juxtaposed. It is unified at the
top through the existence of a Supreme Court that will be looked at in the
next part.

Besides
those classical jurisdictions some of which are ordinary while others are
exceptional, there exist administrative organs of judicial characteristics. They
received from law the jurisdiction to exercise certain functions of courts.
These are the Guinean Bar Association, the Association of the Guinean Medical
Practitioners and the Chamber of Arbitration of Guinea.

Even
though they are not on the official list of courts, thus not falling within the
scope of this discourse, we shall examine the most prominent among them because
of the intensity of its activities: the Chamber of Arbitration of Guinea.

Arbitration
consists for the litigants, of requesting a private individual to regulate the
conflict opposing them. It is therefore a private justice system on contract
basis. According to an experienced businessman, there are two main reasons
explaining while Arbitration is frequently used in matters of economic
activities: the first is that litigations in business sector do not usually
carry the public order characteristics, the Chamber functions
according to the rules of private management. A simple arbitration being licit
is highly preferable. The second is that the business sector is more attentive
to the advantages of Arbitration with regard to classical judicial practices
because it holds speedy justice cleared of many formalities of usual
proceedings. Further, it is relatively less costly and it makes use of
professionals in the field of business instead of judges who may have a less
profound knowledge about economic activities. Finally, Arbitration is marked by
the secrecy of the parties.

This
institution has been put in place by the Presidential
Decree D/150/PRG/SGG of August 11, 1998 (hereinafter the Decree n#150).
According to this Act, the Chamber of Arbitration is transitionally attached
and placed under the supervision of the Ministry of Justice. Its mission
consists of providing means to Guinean and foreign businessmen to regulate
their conflicts through arbitrators they freely chose. It organizes and supervises the
operations of arbitration. Its seat is Conakry.

For
its proper functioning, the Chamber of Arbitration is divided into three
organs: the Council of Administration, the Committee of Arbitration, and the
Administrative Bureau. [[57]] They shall be analyzed
successively.

The Council of Administration

According
to article 6 of Decree n #150, the Council of Administration is
composed of the seven following members:

-An accountant expert
chosen by the Minister in charge of promoting private sector on the
proposal of the Association of the Accountant Experts in Guinea,

-A
jurist expert chosen by the Minister of Justice,

-A
banking expert chosen by the Minister of Finance on the proposal of the
Association of the Banking Professionals,

-A
representative of the Chamber of Mining,

-A
representative of the Chamber of Agriculture,

-Two
representatives of the Chamber of Industries and Commerce and Handcraft one of
whom is from the sector of Industry the other from Commerce and Handcraft.

To be a member of this Council one has to be businessman of high
moral integrity, mastering the activities susceptible of being brought before
the Chamber, be a qualified lawyer in the field of Business Law or be qualified
in Assistance to private sector.

Members
of the Council of Administration have a three-years mandate
renewable once.

Committee of Arbitration

It is a technical team composed of three permanent members
and three substitutes, all chosen by the Council of Administration.[[58]] This Committee is
in charge
of every task related to the proper unfolding of the proceedings of
arbitration.[[59]]

Administrative Bureau

It
has three services: the service of secretariat, the accounting service, and the
service of documentation. It is headed by the General Secretary who is in
charge of administrative and financial management of the Chamber under the
control of the Administrative Council.

The
Secretary General and the heads of the services as well as other agents of the
Bureau are all selected by the Council of Administration.

The
following resources are available for the proper functioning of the chamber:
Chamber’s own resources, Subsidy from Consular Chambers, Subsidy from the
Government and international donors, Donations and legacy.

The
courts are institutions set up by the State to settle conflicts between individuals
as well as the governed and the governors. They do not look for cases
for themselves, but cases are brought before them by the parties, thence the
necessity of examining ways through which those matters are taken to them.

Like
the categories of matters (civil and penal matters), there are two kinds of
proceedings before Guinean courts: civil and penal proceedings. These
proceedings are not opposed. They are in fact in many cases complementary.
However, they are not substitutable nor are they conjunctible.

Distinction
between penal and civil proceedings is easy to establish: one of
the main differences between penal and civil proceedings is that the former is
destined to protect the society against those who threaten the basis on which
it is built: the
proceedings in penal matters tend to protect public order by means of applying
punishments. It is mainly inquisitor meaning that it is exercised by the judges
in the courts by gathering evidencesof the offence and appreciating
them. The intimate conviction of the judge is determinant in this process. It
goes beyond the will of the parties. Meanwhile the proceedings in civil matters
seek the balance between private interests. It is mainly accusatory for the
fact that it is up to the parties to determine the subject of their litigation,
and bring evidences in support of their contentions. They can also put an end
to it by renunciation or transaction.

These
two types of proceedings being different, they must be analysed separately.

1
Penal proceedings in the Guinean legal system

It consists of all the rules destined to expose the offences
and offenders and ensure the application of punishment the latter deserve. It
consists two essential judicial stages: the first stage is related to the
determination of the identity of the offender by gathering evidence against him
and the second is the application of law.

a
Identifying the offender

The
first step is the preparatory examination intended to identify the suspect and
gather bits of information around him. It is conducted by a unique magistrate.
The second is the definitive preliminary examination, which leads to judgement.
It can be detailed in case of appeal.

For offences defined as contravention and misdemeanour, the
first step is optional for the fact that there can be direct summons before the
tribunal.

It will be reasonable to wonder who can set the penal
proceedings in motion. According to article 1 of the Guinean Code of Penal
Proceedings, seeking the application of punishment to offenders, the penal proceedings
are set in motion by law-officers and state functionaries to whom law confers
that responsibility. Therefore, the Prosecutor’s Office, which represents the
society, is the first concerned with this responsibility.

Due to its importance, this institution shall be analysed in
detail among the constitutive elements of penal proceedings.

The phrase Prosecutor Office has double meanings: on the one hand,
it refers to all the judges responsible for setting the proceedings in motion,
on the other it means a single judge who represents the society during the
trial. If this institution exists in both civil and penal proceedings, its role
is more pre-eminent in the latter. To carry out its missions it is marked by
the following characteristics:

- Indivisibility.
The judges of the same Prosecutor Office can substitute one another without
changing their position vis-à-vis the case. They are unified under the
authority of the Executive Power, and they represent the society.

-Hierarchy.
There is a hierarchy between the members of this office headed at the national
level by the Minister of Justice. They obey this rule.

-Non-responsibility.
If they fail in a case, these law-officers cannot be subject to payment of
damages to the accused person.

-Independence.
They are independent from the sitting judges. They do not receive any order
from the courts to which they are assigned. According to article 606 of the
Code of Penal Proceedings, they cannot be challenged in appeal. And according to
‘’the principle of opportunity of prosecution’’, the Prosecutor can stop or
decide not to start at all a prosecution. [[60]]

However, the Prosecutor’s Office is not always free to start
the proceedings. There are some circumstances that hinder its impetus. They are
as follows:

- Cases in which the setting of proceedings in motion is
subordinated to a complaint or a preliminary denunciation: when the proceeding
is liable to cause further damages to the victim. For instance the offence of
slander in the Press cannot be prosecuted without the consent of the victim.

- Cases in which the setting in motion of proceedings is
subordinated to a preliminary judgement. It may be that the solution of penal
case supposes that a question linked to civil jurisdiction is first settled.
For instance, the offence of abandonment of family unless it is determined by a
civil court that the couple is legally married.

Proceedings can also be initiated in penal matters by other
means. Here, two hypothesises are foreseeable: some public administration like
tax service and Bureau of Customs can set the proceedings in motion as well as
the victim of the offence.

The next question raised is about the steps to bring the case
before a penal court. Two institutions play that role: the Examining Magistrate
at the Tribunal of First Instance, and the Chamber of Accusation at the Court
of Appeal. They examine serious and complex cases. This process is compulsory
in criminal matters, but optional in misdemeanours and only on request of the Public
Prosecutor in contravention.

The Examining Magistrate is an independent entity of the
first instance in the penal proceedings. It is independent vis-à-vis both the
Prosecutor’s Office and the court of the decision. Its mission is to gather
information and evidence around the suspect and decide whether the charges
lodged against him are serious enough to be referred to a court.

The Chamber of Accusation, which is one of the Chambers of
the Court of Appeal, pronounces on appeals launched against ordinances of the
judges of Examining Magistrate. It intervenes also in criminal cases as the
second-degree.

A matter can also be brought before the penal court by other
means:

-The
process of summons ‘‘citation directe.’’ It is made by means of a writ
delivered on request of Public Prosecutor without passing through the stage of
preliminary examination. This process is not possible in a criminal case in
which the preliminary examination is always necessary.

-The
suspect can conduct himself to the court by ‘voluntary appearance in court’,

-The
notice of judicial appointment or judicial rendezvous. It happens on the
decision of the Public Prosecutor to release a suspect that should appear
immediately by arranging an appointment with him for a later appearance. This
schedule cannot be less than ten days and more than two months.

-The
appearance ex officio. Exceptionally, the court can refer a case to
itself ex officio on request of by the Public Prosecutor when the
offence is committed during the trial.

After the application to a court at the preliminary stage in
due form, the hearing is the next step. It has some characteristics worth of
mentioning:

-The
publicity: the trial is held publicly. There can be no exception to this rule
unless for sake of public mores or public order.

-The
hearing is contradictory: the parties are on equal footing before the court of
decision. They discuss on equal basis under the control of the President of the
court to whom the direction of the trial is granted. [[61]]

The use of any camera (video or photo) or sound recording
device remains proscribed inside the court during the hearing unless otherwise
authorized. [[62]]

After all the necessary steps for the manifestation of the
truth in due process, the judicial decision is the outcome.

b Application of law

Every decision pronounced by a court has to be subject of a
deliberation, even if it is a unique judge. It can be pronounced outright after
the judgement (that is the case with the Court of Assizes) or in later hearing.
This decision, which must be justified, is pronounced orally.

There are various kinds of decisions:

-
Provisional order: it is not pronounced on the substantive issue of the case,
but prepares for its solution. It either settles certain incidents related to the
conflict or orders measures that help to enlighten the court.

-Decision
of release or acquittal of the suspect,

-Decision
of exemption from punishment: they are not to be confounded with decisions of
release or acquittal for the simple reason that here the accused is found
guilty; the court only decides not to apply the prescribed punishment. For
instance, a minor under the age of 13, or the one between 13 and 18 years of
age against whom a penalty cannot be pronounced. However, the civil
responsibility of the offence cannot be excluded for the persons in charge of
the offender.

-Decision
issued from sentence: In penal proceedings, it pronounces a punishment;
sometimes complementary or accessory punishments can be added. With regard to
civil suit, the sentence of the accused in penal proceeding proves that he is
guilty. Therefore, the civil suit can be found well founded and a decision on
the value of damages can be pronounced if there is a proof of relation between
them.

-Decision
of inadmissibility: this decision is pronounced by the court when it feels that
the normal procedure was not respected for the application. Therefore, it does
not examine the substantive aspects of the case.

A decision may not always be the end of the proceeding. There
are possibilities of appeal when one feels that errors were committed in the
proceeding amounting to an impairment of his rights.

c Means of redress

The Guinean Code Penal Proceedings and Code of Civil
Proceedings dispose provisions that make available for the amenable some means
of redress intended to reform erroneous decisions. Some of these means of
redress are ordinary; they give opportunity for the court to examine anew the
case in all its aspects, while others are extraordinary. They are admitted in
limited enumerated cases by law when ordinary means are exhausted.

In penal proceeding ordinary means are:

-Opposition:
in order to respect the principle according to which no one should be sentenced
without having been given the opportunity to put forward his arguments, the
Code of Penal Proceedings set up this means of redress on behalf of individuals
against whom a sentence was pronounced inabsentia. It is
meant to retract the decision so that the case can be retried by the same court. [[63]]

This appeal can be lodged before the Court of Appeal by the
defendant or by the person legally responsible for his act.

If the notification was made to the defendant himself, the
deadline to lodge this appeal is within 10 days if the defendant is in Guinea
and one month if he is elsewhere. [[64]]

Another ordinary means of redress is also available.

-Appeal
before the Court of Appeal

It consists of bringing before the Court of Appeal a case
already decided in the first instance. The second judgement is to avoid
judicial errors. This appeal is not possible in contravention unless the fine
pronounced by the court is over 5,000 Guinean francs or if the sentence is an
imprisonment. [[65]]

With regard to the time limit of appeal, it is 15 days from
the pronouncement of the decision for the defendant against the decision of the
Tribunals of First Instance and one month from the same moment for the Public
Prosecutor concerning the decision of the Justice of Peace. [[66]]

For misdemeanours, article 489 of the same Code stipulates that
this appeal is possible against both decisions on the substance and the
procedures; decisions of punishment for the same person as the ‘Opposition.’

It is lodged within 15 days from the verdict except the case
where up to two months period can be allowed to Public Prosecutor.[[67]]

The extraordinary means are all brought before the Supreme
Court. They are the appeal for annulment and the appeal for revision.

-Appeal
for annulment or cassation

According to Law n #008, this court can deal with two kinds
of appeal for annulment: the appeal in the interest of the parties (which is
regular) and the appeal in the interest of Law (which is exceptional).

The appeal in the interest of parties is possible in the
following circumstances:

- Incompetence of the court of the decision,

- Abuse of authority by the judge (for instance when he
gives himself an authority in violation law.),

- Violation of rules governing the procedural issues,

- Violation of rules relating to the substantive issues (for
instance qualification of the offence.)

For the appeal in the interest of law, it can be lodged for
the violation of procedure by all the parties. For instance, when all of them
failed to respect a time limit set by law.

Besides this appeal for cassation, which is relatively
regular in Guinea, there is another that is more seldom.

-Appeal
for Revision

This appeal intervenes to correct errors committed in the
judgement that were relevant for the outcome of the decision. The following
reasons are among the circumstances giving ground to such an appeal:

- When evidence is found, after a sentence for murder, of
the presence of the so-called victim,

- When a witness in the hearing has been found guilty,
after the decision, of false evidence in another case,

- When another suspect is found guilty (not as an
accomplice) and sentenced for the offence for which someone else had been
sentenced,

- Any other evidence that reveals the innocence of a first
sentenced person.

Coexisting with the penal proceedings is the civil
proceedings, which will be examined in the next step.

2 Civil proceedings

Giving some similarities between the two proceedings, only
two aspects of the civil proceedings will be discussed in order to avoid
unnecessary repetition: the jurisdiction in civil proceedings and the means of
redress.

a Jurisdiction in civil proceedings

The main principles governing the territorial jurisdiction in
civil proceedings are as follow:

i In personal or estate case, it is the tribunal of
residence of the defendant that is competent. In presence of many defendants
from different territorial jurisdictions, the plaintiff has the opportunity to
choose the court of one of them.

ii In cases related to real estate, it is the tribunal of
the location of the estate that is competent.

iii For birth or death, it is the tribunal of the place of
birth or death that is competent.

iv For matter of divorce, it is the tribunal of the last
residence of the couple that is competent.

v For cases related to succession, it is the tribunal of
the last residence of the deceased person that is competent.

vi For cases involving a company, it is the tribunal of the
head office, sometimes that of a branch that is competent.

vii In contract matters, it is either the tribunal of the
delivery or that of the place where the contract is executed.

viii In cases related to food or responsibility in
marriage, it is the tribunal of the residence of the creditor that is
competent.

ix In the maritime conflicts, a matter related to the
contestation of delivery, works or hiring, it is either the tribunal of the
place where the contract was passed or that of the place where it would have
been carried out.

x When a law professional is party to a conflict that is in
the jurisdiction of the court to which he is assigned, the plaintiff can bring
the case before another tribunal of the same rank.

b Means of redress in civil proceedings

With regard to means of redress some of which are ordinary
and others exceptional, in civil proceedings the ordinary means are as the same
as in the penal proceedings, therefore, only the exceptional means will be
discussed here. They are:

i Opposition by a third party ‘Tierce opposition’.
This appeal is lodged by someone that was not originally party to the conflict
but suffers or is likely to suffer the consequences resulting the decision
thereof. Certain conditions are to be met before exercising this process:

- The person must have a real interest or suffered a
prejudice (even a simple threat of prejudice),

- He should not have been party or represented to/in the
conflict,

- The decision should be susceptible to be attacked by such
appeal, which means that it must impair the right of that individual.

The second exceptional means of redress is as important as
the first one for the guarantee of right of the individuals.

ii Appeal against the judgement. It is the opportunity
offered to a litigant to request the court, which pronounced a decision that
has already acquired the authority of res judicata to retract that
decision in order to be re-examined in its substantive aspect.

The following reasons are among those that give ground for
the admissibility of such appeal:

- When it has been revealed after the decision that the party
in favour of whom the decision was pronounced used fraud to convince the court,
or

- If evidence concealed by a party has been found after the
pronouncement of the decision.

However, some decisions are exempted from such process. They
are the provisional orders and the adjudications of the Supreme Court.

Anyway
according to articles 658 and 659 of the Code of Civil, Economic and
Administrative Proceedings (hereafter Code of Civil Proceedings), this appeal
is not possible unless it is proved that the author failed without any
premeditation on his side to expose the reason evoked before the decision could
have acquired the authority of res judicata. The following extraordinary
appeals are possible in Guinea once certain conditions are met:

i
Taking issue with a judge ‘prise à partie’:

This
appeal is made against a judge for abuse of authorities. The reasons serving
ground for this appeal can be as follows:

-
Wilful misrepresentation: it appears when the judge deludes a party in order to
get his bona fide,

-
Fraud: it occurs when the judge accomplishes male fide an act that
causes prejudice to a party;

-
Peculation: it appears when the judge receives, requires or orders the payment
of an amount of money by the parties that was not legally due to him,

-
Professional fault: this fault occurs during the preliminary examination or
hearing,

-
Denial of justice: it appears when a judge voluntarily omits or refuses to take
action on a request to him addressed even though he was competent to deal with
it.

A
last ground of appeal is available against neither the judge himself nor the
decision on substance:

-Rejoinder

According
to article 201 of the Guinean Code of Civil Proceedings, this appeal is made
against a decision pronounced on the question of jurisdiction of the court, not
on the substance of the matter.

For
the appeals that are common to the two proceedings (penal and civil), they are
examined once. That is the case of second instance appeal and the appeal to the
Supreme Court. However, there are some close links between the two kinds of
proceedings despite their fundamental differences. We need to examine those
relationships, which are the following:

-
The fact that they can, all, be brought before the same judge. The penal case
judge can be competent to take cognizance on civil suit related to the offence,

-
Res judicata in penal case has authority on civil proceeding: it is the
evidence gathered in the process of penal proceedings that is used to determine
civil responsibility of the offender.

The
proceedings, be it civil or penal, are not meant to last forever. They come to
an end one way or the other. There are some causes that end both civil and
penal proceedings. The following are among those reasons:

-A decision that has
acquired the authority of res judicata after the exhaustion all the
means of redress ends all proceedings.

-The prescription, the
time limit after which no proceeding is available. According to article 8 of
Code of Penal Proceedings, no civil suit can be launched after the prescription
of the penal proceeding to which it is subordinated. The prescription of all
civil suits is after 30 years, for penal proceedings, the prescription is 10
years for offence qualified as crime, 3 years for misdemeanour and 1 year for
contravention. When the crime is committed by a minor, the time limit of
prescription starts after the period in which he reaches his age of majority.[[68]]

-The death of the
offender. If the death of the offender ends the penal proceedings, it does not
end the civil proceeding unless it occurs before the ends of the final penal
decision to which it is linked. Otherwise, it can proceed against the successor
of the offender.

-The abrogation of the
penal law. Once the law is abrogated, the act it defined as offence ceases to
be so, consequently it will not be incriminated in the future and,
exceptionally if the new law is weaker than the old one, the abrogation will
benefit retroactively an offender whose case has not yet acquired the authority
of res judicata contrarily to article 5 of the Penal Code. [[69]]

-Transaction. Usually
the transaction is not possible in penal cases, however, in limited cases like
fiscal matters or matters before the Bureau of Customs.There can be
transaction in those cases to end the proceedings.

-Retraction of complaint.
Usually, the penal proceeding, which is entailed to protect the society, cannot
be interruptedby simply retracting the complaint. That is possible only
when the complaint is a necessary condition of it. Example: violation of
privacy and abandonment of family.

Although,
all the various decisions pronounced by the abovementioned courts are not yet
compiled in a single document or on websites, those of the higher courts are
accessible.

Besides
the three traditional institutions in our legal system, some newly created
institutions worth to be mentioned:

Economic and Social Council

This
institution gives advices on all matters brought before by the President of the
Republic or the National Assembly. It examines all the bills and presidential
decrees relating to economic and social issues brought before it. It is in fact
binding to consult

Publication
of Decision

The
decisions of Guinean courts are now published in either the ‘Bulletin de la
Justice Guinéenne’ (Bulletin of Guinean Justice) by the ‘Fondation pour
l’Etude et la Promotion du Droit en Guinée’ (Foundation for the Studies and
Promotion of Law in Guinea) under the auspices of the Ministry of Justice since
1997 and the ‘Recueil des Decisions des Courts et Tribunaux avec
Commentaires’ (Compedium of Decisions of courts with Comments). They are
also published in the Official Gazette (Journal Officiel de la République or
JORG), which appears every 10th and 25th of each month

The
Guinean legal system, as anywhere, is not static, however, it is particularly
unstable because the unpredictable nature of the relationship between the main
role players on the political scene. The position of Prime Minister being
provided by the Constitution will certainly help avoid eventual source of
tension in the Executive branch of power between the President and his henchmen
on one side and the trade unions leaders as we have been witnessing in the past,.
There were many voices supporting the revision of the Constitution in order to
introduce the position of the Prime Minister. Another reform may target the
National Assembly, which is a mono-cameral institution into a bicameral: a
Senate and the Parliament. Now the ambition of some lawyers to see the judiciary
reformed with the split of the present Supreme Court into three equal-rank
institutions: Cour de Cassation (Supreme Court of Appeal), Cour
Constitutionnelle (Constitutional Court) and Conseil d’Etat (Council
of State) is partially fulfilled with the birth of the Constitutional Court and
the Court of Accounts. The establishment of an Independent Institution for the
Human rights is a significant development that needs to be supported by both
the national and the international community.

[[5]] Since there is no
National Assembly in Guinea for the time being, its structure will be analyzed
in the future.

[[6]] Article 63 of the
Constitution.

[[7]] Article 65 of the
Constitution.

[[8]] Article 68 of the
Constitution.

[[9]] Other documents
deposited are: the previous voted Budget, meaning the expenditure allowed for
that year. It is in green color; Budget of program, it examines different
actions of a Ministry according to its objective. It is in white color; and the
General Annex, which gives a comparison of the budget for each Ministry,
chapter-by-chapter, article-by-article with that of the previous year. It is in
yellow color.

[[10]] Article 61 paragraph 2
of Fundamental Law.

[[11]] Articles 93 and 94 of
the Constitution.

[[12]] Article 113 de la
Constitution.

[[13]] Ordinance n#109

[[14]] Law n#021

[[15]] Only one judge sits at
the hearing.

[[16]] Article 63 of the law
n#021.

[[17]] Article 2 of Guinean
Penal Code classified the infractions into three categories: the infraction
punishable by police court is contraventions; the infraction the law considers
as misdemeanours; and those the law punishes by afflictive and infamatory
sanctions, are crimes.